Customs bill amendments restrict government's freedom of manoeuvre

A total of 38 new clauses and 118 amendments were tabled for report stage debate. None of the votes on the bill saw the government on the losing side.

This report summarises the fate of the most significant amendments and new clauses, and what was said in the debate itself. It mostly ignores the political machinations around the votes, which have been widely covered in the media.

Successful amendments and new clauses

New clause 36 (European Research Group, lead sponsor Priti Patel) was agreed by 305 votes to 302. This would prevent the UK collecting tariffs on behalf of the EU unless the EU agrees to collect them for the UK.

New clause 37 (European Research Group, lead sponsor Laurence Robertson) was agreed without a vote. This would make it unlawful for the government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain.

Amendment 72 (European Research Group, lead sponsor Sir Bernard Jenkin) was agreed without a vote. This provides that any UK-EU customs union must be approved by a separate Act of Parliament. The existing legislation (which will continue to apply to the formation of any other customs union involving the UK) just requires approval by an affirmative resolution.

Amendment 73 (European Research Group, lead sponsor Craig Mackinlay) was agreed by 303 votes to 300. This seeks to prevent the UK from joining the EU’s VAT regime. It does this by removing paragraph 14 from schedule 8 of the bill, which had attempted to charge acquisition VAT on cross- border movements of goods within a customs union. 

Amendments 33-34 (SNP) were agreed without a vote. These provide that the powers of disclosure in the bill cannot be exercised in breach of the updated data protection framework to be enshrined in the Data Protection Act 2018.

A large number of government amendments were agreed without a vote.

A number of these relate to the scrutiny process for secondary legislation –

• Amendments 75-76 provide that regulations under Clause 30 (general provision for import duty purposes) cease to have effect if not approved by the House of Commons within 28 days of being made.
• Amendment 79 provides that regulations under Clause 42 (EU law relating to VAT) cease to have effect if not approved by the House of Commons within 28 days of being made.
• Amendments 81 and 23 provide that regulations under Clause 47 (EU law relating to excise duty) cease to have effect if not approved by the House of Commons within 28 days of being made.

A number of government amendments restrict the duration of the powers granted by the bill –

• Amendment 78 provides that the powers to make regulations under Clause 42 (EU law relating to VAT) are not exercisable after 31 March 2023.
• Amendment 80 provides that the power to make regulations under Clause 47 (EU law relating to excise duty) is not exercisable after 31 March 2023.
• Amendment 82 provides that the power to make regulations under Clause 51 (power to make provision in relation to VAT or duties of customs or excise) is not exercisable after 31 March 2022.

Two government amendments relate to matters to be considered in relation to setting import and export duties –

• Amendment 74 requires the Treasury, when considering what rate of import duty ought to apply to particular goods, to have regard to the interests of UK producers of those goods.
• Amendment 77 requires the Treasury, when considering whether to impose export duty and the rate of export duty that ought to apply to particular goods if it is to be imposed, to have regard to the interests of UK producers of those goods.

Further government amendments relate to the work of the Trade Remedies Agency (TRA) –

• Amendments 84-102 enable the Trade Remedies Authority (TRA), where it makes a provisional affirmative determination during a safeguarding investigation, to recommend that goods be made subject to a provisional tariff rate quota as an alternative to recommending that a provisional safeguarding amount be applied to the goods.
• Amendments 103 and 108 provide that the Secretary of State may reject a recommendation by the TRA to apply an anti-dumping or anti-subsidy remedy only if the Secretary of State is satisfied that it is not in the public interest to accept the recommendation. In deciding that, the Secretary of State must accept the TRA’s view that the economic interest test is met, unless satisfied that the TRA could not reasonably have come to that view.
• Amendments 104-107 and 109 provide that the recommended period for the application of an antidumping amount or a countervailing amount is 5 years unless the TRA considers that a lesser period is sufficient to counteract the dumping.
• Amendments 110-112 add ‘injury caused by the dumping of the goods or the subsidised imports to a UK industry [and] the benefits to that industry in removing that injury’ to the list of matters that the TRA and Secretary of State must take account of when deciding whether the application of an anti-dumping or anti-subsidy remedy is not in the economic interest of the UK, and make related changes.
• Amendment 113 enables the TRA to waive the requirement for an application for the initiation of a safeguarding investigation to be accompanied by a preliminary adjustment plan.
• Amendments 114-115 disapply, in some circumstances, the requirement that an adjustment plan be in place before the TRA can recommend to the Secretary of State that a definitive safeguarding amount should be applied or a tariff rate quota imposed.
• Amendments 116-118 adds ‘the serious injury caused by the importation of the goods in increased quantities to UK producers of those goods and the benefits to those UK producers in removing that injury’ to the list of matters that the TRA and Secretary of State must take account of when deciding whether the application of a safeguarding remedy is in the economic interest of the UK, and make related changes.

Additionally government amendment 83 ensures certain excise penalties remain in place on EU exit.

Unsuccessful amendments and new clauses

Voted on

Three opposition new clauses and one amendment were pressed to the vote but defeated.

New clause 11 (Labour frontbench) was rejected by 316 votes to 289. This sought to make tariff free access to the EU including the potential to participate in a customs union, a negotiating objective.

New clause 13 (Labour frontbench) was rejected by 316 votes to 291. This sought to apply an enhanced parliamentary procedure to several of the provisions in the Bill.

New clause 16 (SNP) was rejected by 316 votes to 36. This sought to require Scottish Parliament consent to implement a number of powers in the Bill.

Amendment 21 (Labour frontbench) was rejected by 317 votes to 283. This sought to put in place a presumption that if dumping is found, a remedial action will be taken.

Not voted on

A large number of other amendments and new clauses were not moved or withdrawn.

New clauses 1 and 12, proposed by a cross-party group led by Anna Soubry, would have established a negotiating objective to maintain the UK’s participation in the EU Customs Union.

A group of backbench Labour MPs including Chris Leslie and Chuka Umunna proposed a number of new clauses -

• New clause 2 would have established a negotiating objective to maintain the UK’s participation in the EU VAT Area.
• New clause 3 would have prevented tariffs being imposed on goods originating from EU Member States.
• New clause 4 would have required tariffs set by the UK to be pegged to EU tariffs.
• New clause 5 would have required regulatory alignment with regard to VAT and excise between new UK arrangements and those within the EU or as a member of the EU.

New clause 6, proposed by a cross-party group led by Yvette Cooper, would have required the Government to produce an impact assessment of any changes to existing cross-border taxation arrangements before any such changes are made.

A number of new clauses were proposed by the Liberal Democrats –

• New clause 7 would have required the Treasury to publish an assessment on the economic impact of proposed customs regime and compare it to the economic impact of remaining in the EU Customs Union.
• New clause 8 would have required the Treasury to assess the impact of the proposed customs regime on Northern Ireland and Ireland, especially on the all-island economy, border crossings, the Good Friday Agreement and future alignment with the EU Customs Union
• New clause 9 would have allowed the House of Commons to annul provisions made by public notice under this Act.

New clause 10, proposed by Anna Turley (Labour), would have required a review to be undertaken of the past and possible future exercise of powers to designate free zones and related powers, including comparative information and an analysis of the impact on the case of withdrawal from the EU.

A number of Labour frontbench new clauses were not pressed to the vote, including –

• New clause 14, which would have strengthened parliamentary scrutiny by applying the affirmative resolution procedure to a number of powers in the Bill.
• New clause 15, which would have made full access to the EU internal market a negotiating objective.

A number of SNP new clauses were not pressed to the vote –

• New clause 17, which would require the consent of Scottish ministers before any regulations under the bill could be applied to Scotland.
• New clause 18, which would have required a meaningful vote before the UK Government could introduce tariffs different to those of the EU.
• New clause 19, which would have provided Scottish Ministers with the power to set their own customs arrangements.
• New clause 20, which would have prevented Northern Ireland being given a special status not available to Scotland, subject to approval by Scottish Ministers.
• New clause 21, which would have would restricted the effect of the legislation to exclude Scotland and Northern Ireland.
• New clause 22, which would have requires the Treasury to assess the impact of the proposed customs regime on Northern Ireland and Ireland, especially on the all-island economy, border crossings, the Good Friday Agreement and future alignment with the EU Customs Union.
• New clause 23, which would have required Scottish Government approval to implement a number of powers in the Bill.
• New clause 24, which would have given Scottish Ministers a veto over customs arrangements applying to Scotland.
• New clause 25, which would have required the Treasury to assess the impact of the proposed customs regime on Scotland.
• New clause 26, which would have required tariffs set by the UK on EU goods to be no greater than those imposed on any third countries.
• New clause 27, which would have prevented tariffs on goods from third countries being lower than those on comparable goods from the EU.
• New clause 28, which would have prevented a UK Government from entering into customs arrangements with third countries which would jeopardise customs arrangements with the EU or cause any dispute with the EU.
• New clause 29, which would have required tariffs set by the UK to be pegged to EU tariffs.
• New clause 30, which would have applied an amended version of the super-affirmative resolution procedure to certain powers to make regulations under Schedules 4 and 5, and Clause 42.
• New clause 31, which would have ensured that in the event that the UK is no longer a member of the EU VAT area, the Secretary of State must by draft affirmative regulation introduce a VAT deferral scheme.
• New clause 32 which would have allowed a document proving origin to be issued in the UK and would have allowed the Secretary of State to make regulations specifying the bodies that can issue a certificate and the specifications of a certificate as well as other relevant factors.
• New clause 38 which would have provided the Scottish Parliament with a veto over customs arrangements applying to Scotland.

New clause 33, tabled by backbench Conservative pro-Europeans led by Antoinette Sandbach, would have applied the affirmative resolution procedure to a number of powers in the Bill.

New clauses 34 and 35, tabled by Conservative eurosceptics led by Sir Christopher Chope, would have legislated that, post-Brexit, the UK shall not charge any customs duty or impose any quotas on goods entering the UK across the land border with the Republic of Ireland.

Amendment 71, tabled by Green MP Caroline Lucas, would have required the Treasury, when considering the rate of import duty that ought to apply to any goods, to have regard to the interests of UK producers (e.g. farmers) and to the desirability of ensuring that UK standards of animal welfare, food safety and environmental protection are not undermined by imports produced to lower standards.

The debate

Conservative backbench speeches

Anna Soubry (Conservative) said that, when she became a Business Minister in David Cameron’s Government in 2015, she did not know the finer details of how many of our manufacturing industries and businesses actually worked. But by the time she left the post she understood “how supply chains worked, the value of frictionless trade, and what this thing called “just in time” was really all about. She said it should be compulsory for every MP to go to a car plant “so that they could begin to understand what a supply chain is, why it relies on frictionless borders and what “just in time” means.” She said she would not press the two new clauses of which she was lead sponsor to a vote in order to give the ‘third way’ of the government white paper a chance. She described two of the amendments from the European Research Group (ERG) - new clause 36 and amendment 73 - as seeking to ‘wreck’ and ‘the stuff of complete madness’.

David Davis, the former Brexit Secretary, said the idea that we have “a magical, frictionless system at the moment” was not true. “Operation Stack is what we do when one of the ports gets locked up for one reason or another - a strike in France or whatever. It has been operated 74 times in 20 years. In 2015, it took up 31 days of friction, and our businesses - the just-in-time businesses and the perishable goods businesses - all coped with it”. He also explained that “lots of international supply chain operations operate across borders where there are customs, tariff and currency arrangements.” “The issues that remain at the border will depend on the customs policy we decide on, which very clearly will alter how that border operates. It will include rules of origin, as has already been pointed out; tariff-paid status, if we are in the future customs arrangement, which is more difficult than rules of origin; and regulatory compliance. None requires action at the border. All can be dealt with by electronic pre-notification or pre or post-audit at either origin or destination,” he argued.

Kenneth Clarke (Conservative) said “a tiny minority of the House of Commons is trying to hold us all to ransom over a reasonable deal with the European Union”. Like Anna Soubry, he was “prepared to try to get us out of this political chaos by giving the Government White Paper a try. It is attempting to reach precisely the objectives I am arguing for: frictionless trade, with none of these procedures at the border.”

Priti Patel (Conservative) said new clause 36, which she had tabled, would cement into legislation the principle of reciprocity. “Britain needs to be an equal partner with the EU, not its tax collector,” she said.

Laurence Robertson (Conservative) spoke to new clause 37, of which he was lead sponsor. “This new clause would provide a guarantee that shows we value the Union and recognise the importance of strengthening it, but also acknowledge the importance and the value of our most important trading arrangement, the UK internal market.” “[W]e cannot accept a deal that would allow Northern Ireland to be considered a separate customs territory from Great Britain,” he asserted, saying the new clause “would galvanise the Government’s position on this issue and signal to the people of Northern Ireland that they will not be left behind or left out”. The Irish border is being used as a red herring by the EU, he claimed.

Greg Hands (Conservative) spoke about the Turkish experience of being in a customs union with the EU. Turkey is not in the customs union for everything, but it is for most goods, with the exception of agricultural goods, he said. “What happens when a country is in a customs union with somebody and it goes into a trade agreement?” he asked. “Well, Turkey must give access to its markets under that trade agreement, because it has signed up to the common external tariff. However, because Turkey is not subject to that trade agreement, as that agreement is with the EU… Turkey must negotiate its own trade agreement with counterparts. It is not obliged to do so, and various counterparts have agreed a trade agreement with the EU but not agreed one with Turkey.” He concluded: “The lesson here is that these partners will be less likely, in many ways, to do a deal with such an economy, and ours is the fifth largest economy in the world. If they can get access to that economy through a trade agreement with the EU such that Britain would be forced to lower its tariffs, the people they might want to speak to are more likely to be in Brussels than in London.”

Craig Mackinlay (Conservative) explained the thinking behind his amendment 73. “Why on earth, under any circumstance - putting customs union aside - would we want to stay in the arrangements for the administration of VAT that the EU has?” He argued that this encourages buying from the EU in preference to buying from domestic markets. He explained: “Let us say an imaginary widget sells for £100 in the UK from a UK supplier, £100 from an EU supplier, and £100 from a US supplier. In the case of the purchase from a UK supplier, depending on the trade terms - one might have to pay within 30 days and there is a three-monthly VAT cycle - one would have to have a cash flow of £120 to buy it. Some months later, depending on the timing of one’s VAT return, one would get the £20 back. If one were to buy from a US trader, one would have to pay the £20 input VAT upfront as it crossed the border. But in the case of buying from an EU supplier, an imaginary VAT on the acquisition is created - one self-charges and there is an output later when it is sold in the UK. However, the cash flow is to spend only £100 with the EU supplier. Therefore, by being in the EU VAT system, we have created, perversely, a requirement, almost a push, towards competition that favours buying from abroad.” He also argued that staying in the EU VAT area would prevent us abolishing VAT on tampons, solar panels and insulation products, and reducing VAT on domestic heating and fuel, all of which he thought desirable.

Dominic Grieve (Conservative) described the ERG amendments as “unnecessary and useless” and said that “the only intention behind their tabling was malevolent”.  He said it was right to support the Prime Minister on the White Paper because “despite all the difficulties she has had, this represents the first sensible document to found a proper negotiation. I wish her well with it, even if I have criticisms of it, worry about the absence of services and a common market for that, and worry about some of its other aspects”.

Jacob Rees-Mogg (Conservative) defended amendment 73, saying it “simply retains power for this House”. “If a new customs union were to be introduced by legislation, amendment 73 could be brought in under that customs arrangement,” he explained. He said the importance of new clause 36 was “that it would actually allow the Government to run their trade policy. Trade remedies… would not be possible if the new clause were not implemented, because that position would simply allow for goods to be imported into the UK via other EU member states and not subject to any anti-dumping measures that we might have taken.

Jonathan Djanogly (Conservative) said that “there is little evidence that business sees any advantage in customs differentiation - indeed, quite the opposite. The vast majority see advantages in our customs negotiating position, which emanates from the power of the huge trading bloc that the EU represents, and will wish in any event to stick as closely as possible to whatever trading position the EU takes.”

Vicky Ford (Conservative) said you do not need to be in a customs union to resolve the rules of origin issue. “That can be done through a PEM convention,” she argued. Also, citing Switzerland, being in a single rulebook on goods does not stop you from doing trade deals with other parts of the world.

Labour backbench speeches

Chris Leslie (Labour) described new clause 36 as “clearly a wrecking amendment to the facilitated customs arrangement that the Prime Minister put in the Chequers agreement”. While amendment 73 “would provide that if Britain ever entered into any future customs union with whatever territories, we could not have our current smooth VAT acquisition arrangements, whereby we avoid firms having to pay VAT upfront at the border and have frictionless trade, of which VAT is such an important part.” The amendment would, he said “hole future VAT arrangements below the water line.” By contrast his new clause 2 would preserve the UK’s current role of participation in the EU VAT area. “I think we currently have 25 million customs declarations paying VAT at the border. That will potentially rise to 255 million. Imagine the bureaucracy, the cost of administration and the paperwork for our VAT system if those declarations also have to be made at the border.” He had concluded that a customs union is “not just preferable; it is the only realistic option.”

Yvette Cooper (Labour), said MPs who oppose any form of customs union “are underestimating the significance of rules of origin checks which, according to the Government’s own analysis, can burden businesses with additional costs amounting to between 4% and 15%.” “I am thinking particularly of the huge number of small businesses that have not yet traded outside the EU and for which rules of origin will be a new burden,” she added. Cooper said she was astonished ministers want to accept amendment 73. “It is deeply destructive, and it would actually make it harder for the Government to secure the customs arrangements that we need. It means that if their facilitated customs arrangement does not work, the fall-back position will be no customs deal at all, which would be deeply damaging for our manufacturers.”

Ian Murray (Labour) said there is “absolutely no way we can achieve frictionless trade - what the Government want us to try to achieve - while putting in place policies that set hurdles in front of it. The [ERG] amendments would mean no VAT alignment, but if there is no VAT alignment, there is no backstop. If there is no backstop, there is no withdrawal agreement. If there is no withdrawal agreement, we have to have a hard border between the Republic of Ireland and Northern Ireland. If that is the aspiration behind some of these amendments, we will in the future have to take a long hard look back at this point, when we are about to inflict the single largest act of self-harm to this country, to see what people were actually trying to achieve.”

Helen Goodman (Labour) said that the facilitated customs arrangement was “not wholly practical”. “It will need a tracking system so that when people import goods, they know where their final use is going to be. This is a whole new bureaucratic system. It means that people who import will have to have information along the supply chain that, at the moment, is of no concern to them. The White Paper says that there is going to be a formula so that we can follow the proportions from the past year, but what if things change from one year to another? Then people will have to make their rebates on the basis of new, fresh information in real time. It sounds very much as though we are going to have not only VAT but VAT mark 2.”

Other opposition speeches

Tom Brake (Lib Dem Brexit spokesperson) spoke in favour of accepting new clauses 1 and 12 and against new clause 36, “which is clearly a wrecking amendment.” He explained that his new clause 7 “simply tries to ensure that the Government are required to do what everyone in the House wants them to do—namely, set out the impact on business of their customs arrangements proposals. They have ducked and dived on impact assessments,” he claimed. The purpose of new clause 9, meanwhile, was “t6o ensure that the Government do not railroad measures through this House using statutory instruments or tertiary legislation such as public notices simply because it is convenient for them to do so and to avoid the scrutiny that Parliament is entitled to exercise.”

Caroline Lucas (Green) spoke primarily about environmental and animal welfare standards, saying that her amendment 71 would make the government consider the desirability of ensuring that UK standards of animal welfare, food safety and environmental protection are not undermined by imports produced to lower standards.

Sammy Wilson (DUP) mocked the understanding of some MPs of what a ‘hard border’ in Ireland could achieve. “If they think that a couple of border posts along the main road at Newry, the main road into Londonderry and the main road into Enniskillen will represent a hard border that will somehow protect the EU from the incursion of goods that they do not want, then they do ​not even understand what it means. It could be that they think that a hard border means a minefield around the border with watchtowers so that no lorries can sneak across the 300 or so roads, or that people cannot build sheds in the middle of field where they put goods in one side in Northern Ireland and they come out the other side in the Irish Republic. It is a ridiculous suggestion, and yet it is thrown at us all the time.” His conclusion? “It is not essential to have a hard border in order to protect trade between the United Kingdom outside the EU and the Irish Republic inside the EU. Other methods are currently used. We have a fiscal border, a regulatory border and a currency border. We do not need checks at the moment, so why would that change once we leave the EU?”

SNP response to debate

Kirsty Blackman (SNP Treasury spokesperson) explained her party’s approach to the bill. “Scotland supports remaining in the single market and the customs union, so the SNP will support anything that keeps us in the single market and the customs union. In the absence of those options being on the table, we will do what we can to protect the economic and cultural interests of the whole of the United Kingdom. Even though some of the amendments are not brilliant, we will vote for anything that makes Brexit slightly softer than the Brexit that is being proposed.”

Blackman said she had raised concern after concern about the authorised economic operator scheme. “If there is to be an expanded trusted trader scheme, it needs to actually work. It needs to be applicable to small businesses and businesses need to be able to access that scheme. We are now at the stage that businesses should know what those schemes are. If the Government are going to bring them forward, they need to do so as quickly as they possibly can so that businesses can be clear on what basis they will be trading in future. That is really important.​”

She added that she was pleased to see “that diagonal accumulation has been recognised in the Chequers agreement. I have been talking about it for some time, and I am really glad that it has been recognised and that we will have a situation where we will possibly still be able to export cars to South Korea, because that is really important for our car industry.”

She concluded: “The Bill is a mess. It does not do what it set out to do, which is replicate the union customs code, and it does not now do what the Chequers agreement said it would on Friday. We need everybody in the House, from all the various factions I mentioned earlier, to get behind proposals that protect jobs and the sovereignty of the people, not just the sovereignty of an elite few.”

Labour response to debate

Peter Dowd (Labour; Shadow Chief Secretary to the Treasury) was dismissive of the facilitated customs arrangement, saying: “we are not clear what about it constitutes a partnership, as it would effectively leave UK customs officials working to maintain a customs union that we are no longer a part of.” He added that “it remains unclear how the FCA would be frictionless. Presumably the final destination of goods would have to be queried as they enter the UK. This would slow down the passage of goods across our borders and prevent intricate supply chains from functioning properly.”

Dowd continued: “What about the UK border? Does the Minister expect checks to be in place to ensure that goods that claim the UK as their final destination are not diverted into the EU once they arrive? Presumably we would need customs checks and controls between the EU and the UK to reconcile goods to documents when, for example, UK anti-dumping duties exceed those applicable on import. Can the Minister clarify? Can he tell us how many trusted traders… are currently registered with the Government’s scheme and how many they believe will be registered by the end of the transition period?” He said all this could be avoided if MPs chose to support Labour’s “clear and pragmatic” solution to the issues of frictionless trade within the EU and preventing a hard border in Northern Ireland.

Government response to debate

Mel Stride (Conservative; Financial Secretary to the Treasury) replied to the debate on what was, the Speaker told the House, his 13th wedding anniversary. He turned first to the various amendments seeking to stay in the customs union, saying that the UK leaving the EU customs union “is a straightforward legal consequence of leaving the EU, so the Government must reject these amendments”.  He said the government had no objection to the enhanced level of scrutiny offered by the ERG’s amendment 72, which seeks to ensure that clause 31 cannot be used to form a customs union between the UK and the EU without primary legislation.

Regarding the other ERG proposals, the minister argued that new clause 36 - which would prevent the implementation of a new arrangement that would see HMRC accounting for duty collected by HMRC to the government of another territory or country unless the arrangement was reciprocal – was “consistent with the Chequers proposal and the White Paper” and thus the government were prepared to accept it. New clause 37, which would ensure that Northern Ireland would not form part of a separate customs territory from Great Britain, was “a straightforward statement of government policy.” Amendment 73, which “will remove a specific power that will enable HMRC to make regulations covering the application of VAT to goods in circumstances where we reach a customs union agreement with other customs unions or territories under clause 31” is not being proposed in the Chequers agreement so, again, “the government accept this amendment.” However, new clause 2, proposed by Labour backbenchers, was rejected because it would “limit our ability to appropriately consider our future VAT policy”.

The minister acknowledged movement by the government on legislative scrutiny for the bill’s powers. “It is critical that we have these powers to allow us to respond flexibly, but we accept that in some cases it may be considered proportionate to apply the made affirmative procedure,” he said, explaining the amendments the government had brought forward in this regard. Finally he accepted the SNP’s amendments making it clear that disclosures that would contravene the Data Protection Act 1998 are not permitted.

Third reading 

The bill passed its third reading by 318 votes to 285.

It now passes to the Lords where it will receive a brief debate in September, but, as a supply bill, it cannot be amended by the upper House. Theoretically it could be rejected by the Lords in its entirety but this is not thought likely.

By George Crozier, Head of External Relations.